The much awaited details of the amendments to ITA 2000 passed by Loksabha
on 22nd and Rajyasabha on 23rd of this month without any debate, has now
come to the public domain. It is time to discuss the implications of the
amendments and also the extent to which the Parliamentary standing
committee's recommendations have been incorporated in the new Bill.
Here is the first set of observations. Detail will follow... Naavi

(P.S: The Bill passed in the parliament now will be referred to as ITA 2000
Amendment Bill 2008 or ITAA 2008. The earlier draft of the Bill tabled in
the Parliament on 15th Dec 2006 will be referred to as ITA 2000 Amendment
Bill 2006 or ITAA 2006)

New Offences Added

The ITAA 2008 adds 8 offences, 5 of which are added to the ITA 2000 and 3
to IPC. The standing committee had proposed that ITA 2000 should be one
comprehensive legislation with less dependence on other penal laws. This
recommendation has been overlooked.

The new offences are as follows:

Section 66: As proposed in ITAA 2006, this section combines
contraventions indicated in Section 43 with penal effect and reduces the
punishment from 3 years to 2 years. It also introduces the pre-conditions
of "Dishonesty" and "Fraud" to the current section 66. The provision
ignores Standing committee recommendations.

Section 66B: This is a new section added in the ITAA 2008 after the
standing committee report.

It states: Whoever dishonestly receives or retains any stolen computer
resource or communication device knowing or having reason to believe that
the same to be a stolen computer resource or communication device, shall be
punished with imprisonment of either description for a term which may
extend to three years or with fine which may extend to rupees one lakh or
with both.

This section appears to cover theft of computer, laptop, mobile and also
information. It can be extended to theft of digital signals of TV
transmission as was once envisaged under the Convergence Bill (since
discarded).

Section 66 C: This is a new section added in the ITAA 2008 after the
standing committee report.

It states: Whoever, fraudulently or dishonestly make use of the
electronic signature, password or any other unique identification feature
of any other person, shall be punished with imprisonment of either
description for a term that extends upto three years and shall also be
liable to fine which may extend to rupees one lakh

This section covers password theft which was earlier being covered under
Section 66.

Section 66 D: This is a new section added in the ITAA 2008 after the
standing committee report.

It States: Whoever by means of any communication device or
computer resource cheats by personation, shall be punished with
imprisonment of either description for a term which may extend to three
years and shall also be liable to fine which may extend to one lakh rupees.

This section covers Phishing which was earlier being covered under Section
66. It may also cover some kinds of e-mail related offences including
harassment.

Section 66 E: This is a new section added in the ITAA 2008 after the
standing committee report.

It States: Whoever, intentionally or knowingly captures, publishes or
transmits the image of a private area of any person without his or her
consent, under circumstances violating the privacy of that persons, shall
be punished with imprisonment which may extend to three years or with fine
not exceeding two lakh rupees or with both.

Explanation:- For the purposes of this section,

(a) "transmit" means to electronically send a visual image with the
intent that it be viewed by a person or persons:

(b) "capture" with respect to an image, means to video tape, photograph,
film or record by any means

(d) publishes" means reproduction in the printed or electronic form and
making it available to public

(e) "under circumstances violating privacy" means circumstances in which
a person can have a reasonable expectation that

(i) he or she could disrobe in privacy, without being concerned that an
image of his private area was being captured or

(ii) any part of his or her private area would not be visible to the
public, regardless of whether that person is in a public or private place.

This clause is meant to address "Voyeurism". In ITAA 2006 this was to
be included in IPC. This section covers non electronic documents also and
may interfere with IPC

Section 66F: This is a new section added in the ITAA 2008 after the
standing committee report.

(1) Whoever,-

(A) with intent to threaten the unity, integrity, security or
sovereignty of India or to strike terror in the people or any section of
the people by-

(i) denying or cause the denial of access to any person authorised to
access computer resource; or

(ii) attempting to penetrate or access a computer resource without
authorisation or exceeding authorised access; or

(iii) introducing or causing to introduce any computer contaminant;

and by means of such conduct causes or likely to cause death or injuries
to persons or damage to or destruction of property or disrupts or knowing
that it is likely to cause damage or disruption of supplies or services
essential to the life of the community or adversely affect the critical
infrastructure specified under Section 70, or

(B) knowingly or intentionally penetrates or accesses a computer
resource without authorization or exceeding authorised access, and by means
of such conduct obtains access to information, data or computer database
that is restricted for reasons of the security of the state or foreign
relations or any restricted information data or computer data base with
reasons to believe that such information, data or computer data base so
obtained may be used to cause or likely to cause injury to the interests of
the sovereignty and integrity of India, the security of the state, friendly
relations with foreign states, public order, decency or morality or in
relation to contempt of court, defamation or incitement to an offence or to
the advantage of any foreign nation, group of individuals or otherwise,

commits the offence of Cyber Terrorism

(2) Whoever commits or conspires to commit cyber terrorism shall be
punishable with imprisonment which may extend to imprisonment for life.

This section covers the Cyber Terrorism offence which was one of the
recommendations of the Standing committee. The definition however lacks
imagination. (A more detailed analysis would be provided separately on this
issue.)

Section 67: The imprisonment term envisaged under the current ITA 2000
is reduced from 5 years to 3 years. However it is an increase from 2 years
compared to ITAA 2006.

Section 67A: This covers "Sexually Explicit Content" and was introduced
in ITAA 2006.

Section 67B: This is a new section added in the ITAA 2008 after the
standing committee report.

It States: Whoever,-

(a) publishes or transmits or causes to be published or transmitted
material in any electronic form which depicts children engaged in sexually
explicit act or conduct or

(b) creates text or digital images, collects, seeks, browses, downloads,
advertises, promotes, exchanges or distributes material in any electronic
form depicting children in obscene or indecent or sexually explicit manner
or

(c) cultivates, entices or induces children to online relationship with
one or more children for and on sexually explicit act or in a manner that
may offend a reasonable adult on the computer resource or

(d) facilitates abusing children online or

(e) records in any electronic form own abuse or that of others
pertaining to sexually explicit act with children,

shall be punished on first conviction with imprisonment of either
description for a term which may extend to five years and with a fine which
may extend to ten lakh rupees and in the event of second or subsequent
conviction with imprisonment of either description for a term which may
extend to seven years and also with fine which may extend to ten lakh
rupees:

Provided that the provisions of section 67, section 67A and this section
does not extend to any book, pamphlet, paper, writing, drawing, painting,
representation or figure in electronic form-

(i) The publication of which is proved to be justified as being for the
public good on the ground that such book, pamphlet, paper writing, drawing,
painting, representation or figure is in the interest of science,
literature, art or learning or other objects of general concern; or

(ii) which is kept or used for bonafide heritage or religious purposes

Explanation: For the purposes of this section, "children" means a person
who has not completed the age of 18 years.

This section covers "Child Pornography" which was earlier covered under
Section 66 and provides some clarifications regarding Kamasutra type of
literature.

In summary, while retaining the offences introduced in ITAA 2006, certain
additions have been made to the list of offences.

(The above covers only part of Chapter XI and more discussion will
follow)